Sandra Fluke, Birth Control, and the Catholic Church

I’ve never heard of Dan Mitchell before, but apparently he’s a libertarian blogger. He’s also, apparently, an idiot. In this post he characterizes Sandra Fluke as wanting the government to pay for her birth control.

That might be a good idea, but it’s not what this controversy is about. Anuone who thought for 10 seconds would realize that this has nothing to do with the government’s paying for birth control. To sum up the obvious:

  1. Sandra Fluke is a student. Students are required to pay for health insurance as a condition of enrollment. That’s true today in Massachusetts, under Romneycare, and it will be true for the whole country once Obamacare is fully in effect.
  2. The Catholic Church, which owns Georgetown University, wants to take Sandra Fluke’s premium money, but deny her birth-control coverage. Note that this does not lead to a premium reduction, since covering birth control lowers health care costs rather than raising them.
  3. So what the church is saying is that it should be able to force its own beliefs on the students and employees of the universities (and hospitals) it owns, and should still be subsidized by our tax money (and universities are heavily subsidized – not just by grants, but federal financial aid and tax exemption for all their real estate).

A more intelligent libertarian view would be that our tax dollars should not go to subsidize sectarian institutions. If Catholic (or other religious) universities want to get all that federal aid, they should follow the same rules as everyone else.

Hospitals Are Not “Religious Institutions”

Wow! I haven’t posted for a long time – so to get my feet wet again, here’s a quick comment on the current controversy over whether Catholic hospitals and universities should have to cover contraception in their employee health insurance.

The bishops are arguing that this requirement violates their religious freedom. In my view, freedom of religion applies to – religion! It does not mean that a church can run a business – and these days, hospitals and universities are businesses above all – and avoid obeying the law.

If a Catholic order offers free care as a mission, that is a religious activity. If the Catholic church owns a big hospital, hires people who are not Catholics to work there, offers care to the general public, and charges much the cost of that care to the government – that is not a religious activity. It is a business activity, and should follow the same rules as everyone else.

Similarly, if a group of Jesuit priests runs a seminary to train future priests, that is a religious activity. If they run a big university with athletic teams, faculty and staff from all religious beliefs and non-beliefs, and high tuition – that is not a religious activity.

It seems pretty clear to me.

Are Corporations People?

Last month Mitt Romney aroused a lot of controversy by asserting that “corporations are people,” and added “Of course they are! Everything corporations earn ultimately goes to people. Where do you think it goes?” (quoted in the Washington Post, August 11, 2011).

Progressives had a good time making fun of Romney for these remarks, but much of the criticism missed the point — it was basically about how corporations are rich and powerful entitites, while most people are not. That’s true, but it’s simply part of the general problem of growing economic inequality – lots of individuals are also rich and powerful, and get privileges the rest of us don’t.

The real problem is that corporations are not people, but organizations of people, operating under a particular set of rules. Because of those rules, people organized as corporations do things and make decisions that are different from what they would do and decide if they were organized some other way.

We may think of a corporations as made up of employees. Legally, however, the people who make up a corporation are its stockholders. But the people who control the corporation are its officers and board. Those officers and board members have what is called a “fiduciary duty” – that is, a duty to be faithful servants – to the stockholders. This duty could be many things, but in essence it is financial: the corporation is legally required to act to maximize the value of the stockholders shares and/or dividends.

From time to time, something goes wrong in a business operation, sometimes horribly wrong, with deaths and injuries as a result. In such cases, a common first reaction from the leaders of the corporation involved is to want to take responsibility, to apologize if appropriate, and to do what they can to help mitigage the damage.

Then the legal department steps in. It is explained to them that their duty is to avoid making any damaging admissions that might lead to a liability finding against the company, and that any other course of action would violate their duty to the stockholders. So they end up stonewalling and digging in their heels instead of doing what is right and just.

Most people (not all) would be different. Suppose you are driving down a street late at night and sideswipe a parked car. Most people would leave a note on the windshield with a phone number, offering to pay for the repair. Few corporations would do that.

Unfortunately, it is not just Mitt Romney. More and more, the law is treating corporations as having the same rights as people – including the right of free expression (a ridiculous concept, since corporations don’t have opinions or ideas to express – only the people in them do), which is used to justify anti-union campaigns, for example. For a corporation to tell its employees they should not join a labor union used to be an unfair labor practice; now it is a legal right.

Corporate personhood – giving individual human rights to corporations – has seriously distorted American democracy. For more details, see the excellent website of POCLAD, the Program on Corporations, Law, and Democracy.

The Constitution, the Tea Party, and Health Care

The more I listen to the Tea Party, the more I realize that when they refer to the Constitution and the intent of the framers, they are really thinking of the Antifederalists – that is, those who opposed the Constitution because they thought it would lead to a tyrannical federal government.  When Tea Party people argue that health care, or environmental protection, or social security should be left to the states, they are basically arguing against federal authority over interstate commerce.

The point they are ignoring is that, by and large, the Antifederalists lost. Their arguments were rejected, and the Constitution was ratified.

However, their loss was not complete. One of their major objections to the Constitution was that it did not have a bill of rights; enough people agreed with that objection that the Bill of Rights was added to the Constitution. This was a victory for the Antifederalists; but it did not change the federal governments power to regulate interstate commerce.

The Tea Party points particularly to the Tenth Amendment, which says that any powers not given to the federal government are reserved to the people, or to the states. However, this really does not speak to the issues involved in the health care debate. The Obama administration is not claiming that there is a new federal power, the power to provide health care. It is claiming, instead, that the existence of a universal health care plan is vital to the maintenance of a free market in interstate commerce. Any debate about this issue was settled with the passage of Medicare and Medicaid in 1965 – and, in fact, had mostly been settled with the passage of the Social Security Act back in the 1930s.

There is much to admire in the Antifederalists’ vision of a small-scale, decentralized society. The world might be better off if the Constitution had not been ratified. However, it was – and its ratification led to the development of a centralized econcomy dominated by giant corporations.

Those corporations are the big threat to liberty today; we need a strong government to protect us from them. Fortunately, the Constitution allows such a strong government to develop.

Health Care and the US Constitution

I was at the American Political Science Association all last week, but now I’m back, and getting into the swing of things once again. I’ve been wanting to say something about the Constitution and health care, and want to even more after reading Jeffrey Toobin’s piece about Justice Clarence Thomas in the 8/29/2011 New YorkerToobin points out that, while Thomas rarely asks questions, and is ridiculed for not doing so, he has actually had a lot of influence in moving the court to the right in its decisions. Among other things, Thomas is hoping to get a majority to rule that the health care law is unconstitutional.

I’ll leave the detailed analysis to Toobin (and others), but I want to state the simple case why, in historical context, the health care law is completely in accordance with the Constitution.

  • First, regulating health care, including the individual mandate (which requires everyone to be insured) is clearly constitutional for states, as opposed to the federal government. States have broad “police powers” to assure public health and safety, and this is one of them.  Mitt Romney’s first attempt to distinguish his plan from Obama’s was based on just this point – no one took him seriously, but he was correct.
  • So the issue comes down to whether health care is part of interstate commerce. In reality, it clearly is- health care is a major cost of doing business, as well as a big business itself, and people cross state lines to get health care all the time. The law does not always coincide with reality – but since the early 20th Century, the Supreme Court has held that all business above a certain size (usually defined by number of employees, or by total sales or revenue) is effectively in interstate commerce. I can open a bookstore on my corner, but I’ll be competing with Powell’s, Barnes & Noble, and Amazon. If health care is not constitutional, then neither is Medicare, or the federal minimum wage.
  • The point at issue is specifically the individual mandat. An individual who is not otherwise covered is required to purchase insurance. The argument for this is that the system won’t work without it – if people can choose not to get health insurance because they are healthy, then only the sick will get it and the premiums will soar out of reach.
  • Of course, if Obama had proposed a better plan (and got it passed, a big if!), such as “Medicare for all,” where everyone is taxed and everyone gets health care paid for by the government, there would be no constitutional question at all.

I’ll leave it to the lawyers to flesh out these legal arguments, this is just meant as a guide to the basic principles involved. It may help you understand the Constitutional debate.

Libya – Let’s Not Get Carried Away!

I’m back in town for a week, so will try to blog every day until I leave next week for the APSA meeting in Seattle. Where to start! A lot has happened – but I guess I have to say something about Libya.

As I write this (the morning of August 23d), it is looking like the triumph proclaimes over the weekend was overdone. Gaddafi is still holding on, he has troops loyal to him, and some other parts of the country are sticking to him as well. (The press is dismissing these as the areas of his tribe, but so what? They are people, too.) Maybe by the end of the day he will be gone, but maybe not. So let me just make a few points:

  • There used to be something in England called “Whig history.” Basically, this was the idea that England (and I do mean England, not the UK) was the bearer of political liberty, and destined to triumph and enlighten the rest of the world. Everything that happened was for that purpose, and therefore fated to happen. This attitutde is alive and well in the US. Specifically, there is a feeling that Gaddafi is destined to fall – so whenever there are some signs that he is weakening, victory is proclaimed prematurely. Teleology takes the place of analysis – always a mistake. (Orthodox Marxists used to make the same error; it’s one of the things Nicos Poulantzas was trying to correct.)
  • Even if this turns out to be a victory, that does not mean the war was illegal. Nicholas Burns, a former diplomat and now a professor, makes the following argument (among others) in today’s Boston Globe: “. . . the president was subjected to an unusual, highly partisan, and unreasonable assault by Congress on his constitutional right to commit US forces in the first place. Yet Obama persisted, and it has paid off.” That’s just silly. The War Powers Act says that the President must get approval from Congress for foreign military inteverntion. There is no exception that says “unless the US wins.” If intervention was illegal (as I think), then it still is.
  • Now for the basic point. This should be about democracy and the will of the Libyan people, not about whether Libya will be dominated by the US. That’s going to be difficult. Unlike Egypt or Tunis, Libya has a substantial part of the population that seemed to prefer Gaddafi to the rebels. (I remember vividly hearing a radio interview with people in Surt saying how they would fight to the end to keep the rebels out of their city.) This seemed to be more a civil war between two groups, rather than a popular uprising against a tyrant. (Sure, he was a tyrant, my point is that many people still preferred him. It was not just ethnic loyalty, either – see James Petras’s recent book for an argument that Libyans got substantial social benefits under Gaddafi’s rule.). As in any civil war, you have the problem of how the losing side fits in. They are still Libyans, and entitled to be part of any democratic government.

If Gaddafi is replaced by an independent democratic government, I will be delighted. I just think that the triumphalist crowing is both premature and out of place.

The Overworked 14th Amendment

You have to have some pity for the 14th Amendment. Designed to make sure that the end of slavery (accomplished by its predecessor, the 13th) would be permanent, it has been expanded in so many ways.

For example, it has become the basis of “birthright citizenship” for the children of undocumented immigrants, since one of its provisions states that:

All persons born or naturalized in the United States and subject tothe jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

That particular interpretation is pretty well established, since it was part of the Congressional debate about proposing the amendment back in 1866, and was explicity confirmed by the Supreme Court in U.S. v. Wong Kim Ark in 1898. Some anti-immigration activists want to change it, but for the most part they understand that they would have to amend the Constitution to do so.

The 14th Amendment has also – less legitimately, in my opinion – become a major bulwark of the political power of corporations, most recently in the Citizens United decision that corporations (and labor unions) could not be barred from spending as much money as they wanted to try to influence elections. That decision was rooted partly in the 1st Amendment, but also in the following provision of the 14th:

…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Current interpretations of that language hold that corporations are persons, and therefore hold all the rights of human beings. Mountains have been written about that, and I shall not add to them here.

The latest effort to expand the 14th came during the recent debate on raising the ceiling on federal debt. I was all for raising the ceiling, without any restrictinos (see my last several posts). I’d go even further, and authorize the government to borrow money without any statutory limit. After all, we always have to raise the limit when it is reached, so why go through the charade?

However, I am just not convinced by the well-meaning attempts to say that the President has the authority to raise the ceiling without Congressional approval. These attempts are grounded in Section 4 of the Amendment, which begins:

The validity of the public debt of the United states, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.

This means, the argument goes, that the U.S. has to pay its debt service, even if that requires borrowing beyond the debt ceiling. Sorry, I wish it were so, but that interpretation is just not supported by the amendment’s language, for several reasons:

  • First, if you skip a payment on your mortgage, you are not questioning the validity of the mortgage – you still owe the money, and expect to have to pay it or lose your house. You are just unable to make a payment at that time. Similarly, even if the US did default-a horrible prospect- it would not be saying that the national debt was ‘invalid.’
  • In any case, if the US rolled over notes that came due, borrowing money in order to pay them, doing so would not change the total amount owed, so the debt celing would not be a problem. Borrowing to pay the interest would be another matter, but see below.
  • Finally, the government still has revenue coming in all the time; it is just not coming in fast enough to pay all the bills. So if you interpret the 14th to mean that payment of debt is Constitutionally required, that would just mean that debt service would get the first claim on revenues. It is very unlikely that debt service alone would exceed total federal revenue, so it could get paid. Again, the consequences would be terrible – lots of other desirable, even vital government functions couldn’t be carried out – but ‘terrible’ is not the same as ‘unconstititional.’

I understand the idea of threatening to use the 14th Amendment as a scare tactic. However, I don’t think there is a good legal argument for it; and I don’t think we should accept the practice of having Presidents change the meaning of the Constitution to meet the political needs of the moment.

Speaker Boehner, Remember Newt Gingrich?

House Republican leader John Boehner’s debacle last night (July 28, 2011) has a basic common element with the failure of a previous Republican speaker, Newt Gingrich, in 1995. Each failed to understand the difference between the parliamentary and presidential systems of government.

In a parliamentary system, either there is only one house in the legislature, or one house has all the real power, so if a party has a majority of that house, it rules. The leader of the majority party is the leader of the government, and gets an appropriate title, such as “prime minister.” Newt Gingrich actually said in early 1995 that he was effectively the prime minister of the United States.

That is not the system we have.

In a presidential system, such as ours, different institutions possess independent power, and must come to agreement to get things done. In the US, the House, Senate, and President must all agree.

In 1995, the Gingrich shut down the government because he thought he could force President Clinton to accept his budget. He was wrong. Clinton vetoed the budget, the government shut down, the public blamed Gingrich, and he was soon out of office.

In 2011, Speaker Boehner is in a weaker position than Gingrich – both the Senate and the White House are controlled by the other party. In a presidential system, the best strategy in such a circumstance is to work for a compromise where you can achieve some, but not all of your goals. Instead, Boehner has tried to use control of the House, and a certain amount of momentum from the 2010 election, to dictate what happens. As of now, he appears to have failed.

Boehner’s specific mistake was to ask the House to pass a debt-ceiling bill that was going nowhere. The President had already announced that he would veto the bill, a majority of the Senate had said they would vote against it, and the Senate Majority Leader had promised to take up the bill and kill it the same night the House passed it.

In those circumstances, the Speaker needed the votes of the Tea Party Republicans to pass his bill; but they had little reason to vote for it. Doing so would violate their own beliefs, anger the voters who had elected them, and place them in danger of primary challenges. In return, they would get nothing – a bill that would be dead as soon as it passed. Leaders who know which system they are operating in ask for tough votes only when they really need them, and help their members avoid tough votes when they don’t need them. Boehner was attempting to do the opposite, and he failed.

It now appears that Boehner may lose the speakership. It’s a bit early to say that; but he has certainly lost this battle. Let’s hope the next Speaker remembers what kind of political system this is.

Is the US Returning to Cold War Standards?

I had just graduated from college when I saw my government invade the Dominican Republic to support a military dictator who had just overturned the democratically elected President, Juan Bosch. As my awareness grew, I realized that we were supporting brutal dictators in Vietnam, much of Latin America, Iran, Saudi Arabia, and in many other countries. We had overthrown democratic governments in Guatemala and Iran, as well as the Dominican Republic, and a few years later were to collaborate in the overthrow and murder of the democratically elected President of Chile, Salvador Allende, and his replacement by the brutal military dictator Pinochet.

At the same time, we supported the continuation of colonial rule, often very brutally, in Angola, Mozambique, what was then Rhodesia, and many smaller countries; and, most shamefully at all, we supported the atrocious system of apartheid in South Africa.

All of this was “justified” in the name of stopping Communism, which supposedly would take over all those countries if we let them become democratic.

Then came the collapse of the Soviet Union, the end of the Cold War, and the outbreak of the “third wave” of democratization – in Eastern Europe, Latin America, and Asia, and to some extent in Africa. With no more fear of Communism, there seemed to be no more need for the US to support dictatorships in other countries.

But what is happening today? The US government is turning a blind eye to brutal depression by the absolute monarch of Bahrain. It supported the coup against President Zelaya in Honduras, even while claiming to oppose it. It is maneuvering to keep the revolutions in Tunisia and Egypt from becoming “too” democratic. More broadly, it seems like the Cold War all over again!

This trend is appalling. Many people had hoped that President Obama would turn us in a different direction, but instead he seems to be opting for more of the same. The explanation given, when any is given at all, tends to be that terrorism is just like Communism – if we allow too much democracy, it is said, the terrorists will take over. This isn’t very credible, though – it’s just hard to envision massive electoral support for terrorists! (I mean, if they had that kind of support they wouldn’t need to resort to terrorism!)

Far more likely, in my opinion, is that support for dictatorship abroad is linked to the attack on democracy at home. The increase in economic inequality basically means that a relatively small number of people control more and more of the world’s resources. They benefit immensely from doing so, but they can only keep it up if they keep people from voting on it. Here in the US, they do so by a variety of disenfranchising devices (massive imprisonment, intimidation campaigns, cumbersome registration processes, gerrymandering, etc.) In countries like Bahrain, they don’t have to be so subtle. They just work through the monarchies of Saudi Arabia, Bahrain, and the like to arrest, torture, and shoot those who demand democracy.

It’s time we got more democracy at home, and used it to support democracy in other countries.

What’s Behind the Bin Laden Assassination?

The  big question about Bin Laden – and I’m surprised more people are not asking it – is, why kill him? It’s pretty clear by now that those were the orders (I heard it from a guy being interviewed on NPR with CIA ties, and there’s further documentation in The Atlantic. But why?

Let’s leave aside the morality and look at the practical issues. Wouldn’t you think that Osama Bin Laden was what they call a “high-value target” – i.e., someone with valuable information? Isn’t it possible that he actually knew something about what’s left of al-Qa’eda? If this was really about fighting terrorism, wouldn’t they want to question him?

Someone else on that NPR show (I was listening in the car, and didn’t get further specifics to cite the broadcast) said that one of Osama’s bodyguards who’d been captured had orders to kill Osama rather than let him be taken alive. So why have the Seals do the work for him? It doesn’t make sense to me.

Second, why wouldn’t we want to put him on trial? Surely there would be no better way to destroy any last trace of sympathy for the man and his network than be exposing their repugnant deeds in open court. The Israelis knew that when they captured Eichmann, and brought him back to be tried, at considerable difficulty to themselves. All we would have had to do would have been to bring him along in the helicopter, which we did with his body anyway.

Moreover, a trial would have shown the world that we are a country of laws and individual rights, rather than a country that kills without trial. Here I’m verging back to the moral argument, but this one does have a practical side: it would make people respect the US more.

Legally, bringing Bin Laden out alive would have been kidnapping, and Pakistan didn’t like it. But they liked the assassination even less.

So I’m just asking, why were the orders to kill him no matter what? Anybody have an explanation?